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Saturday, June 02, 2012

Military Draft Quandary

Dear Korean,

I'm the 23 year old son of two Korean parents who were both and raised in South Korea and just recently denounced their Korean citizenship (about 5 years ago). They immigrated to the US before I was born and gave birth to me while they were still Korean citizens in the process of becoming U.S. citizens. They forgot to however claim me on their forms in South Korea as their son after I was born and just assumed everything was okay. Finally about a week ago they stated that I was not allowed back into Korea or else I would have to serve in the military because I was born before they became U.S. citizens and so technically I am still a Korean citizen and I hold dual citizenship.

Do I hold dual citizenship because my parents were still Korean citizens when I was born?

Paul

Before we begin, the Korean must give the usual caveat: The Korean is not an immigration attorney of Korea. This post is for broad informational purposes only. Do NOT ask him about your specific situation, because he cannot possibly give a competent answer that fits your situation. Immigration law and conscription law of Korea are complicated things, and you must consult an attorney if you are seriously worried about your situation.

Having said that...

Paul's is a situation that has been happening a lot lately. Although Paul's email did not ask this question directly, the natural follow-up question is: "Will I be drafted into Korean military? What steps can I take to avoid getting drafted if I visit Korea?" It may sound absurd that someone like Paul, who was born and raised in the U.S., may be conscripted into Korean military. But because of an odd and unintended combination of Korean laws, this is a distinct possibility.

Military service in Korea has always been an extremely sensitive social issue. Like the Social
Security in the U.S., it may as well be called one of Korea's "third rail issue" -- touch it, and you die. Particularly among
Korean men, there is a (justifiably) huge sense of sacrifice for
devoting two to three years of the prime of youth to serve the country.
Accordingly, the consequences for draft-dodgers are swift and harsh.

This issue began its course a decade ago. In 2002, popular singer/rapper Yoo Seung-Joon very publicly pledged that he would serve his military duty, then suddenly went back on his word. As a dual citizen between Korea and U.S., Yoo renounced his Korean citizenship to avoid getting drafted. Huge public uproar ensued, destroying Yoo's career and rendering him essentially a persona non grata in Korea. Finally in 2005, Korea's National Assembly passed a law that prohibited dual citizenship holders who were over 18 years plus three months of age (and therefore draft-eligible) from renouncing Korean citizenship. (The previous rule was that the dual citizen automatically lost his citizenship if he did not elect to stay as a Korean citizen before the age of 22.) There was a Constitutional Court challenge against this law, but the court found the law to be constitutional.

This much was not too onerous, actually. In 2005, all dual citizens in Korea knew who they were -- if you were born as a dual citizen, that fact is rather hard to miss. In order to avoid Korea's draft, a male dual citizen simply had to renounce their Korean citizenship before turning 18 years and 3 months old.

The real problem began in 2010. In 2010, in an attempt to liberalize citizenship laws and make the lives easier for diaspora Koreans, the National Assembly began allowing dual citizenship. One condition for having a dual citizenship was that a dual citizenship holder must fulfill all his duties as a Korean citizen, and may not exercise the privileges afforded to non-Korean citizens. For our purpose, this means -- he must report to the draft, and cannot give the excuse that he is not a Korean citizen.

The unintended consequence of the 2010 law that, all of a sudden, it created a large number of Korean dual citizenship holders who did not even know that they were dual citizens. If you are a draft-eligible age, and you realized only recently that you were in fact a dual citizen, you cannot even renounce your Korean citizenship because of the 2005 law. The result: we have a messed up situation in which diaspora Koreans, who may have never visited Korea and not speak a lick of Korean, may be draft eligible for Korean military. He can enter Korea freely, but may get stopped at the airport on his way out of Korea, like all other draft-eligible male Korean citizens.

Unfortunately, there is no good way out of this. However unintended, this is how the law is today. If you have a non-Korean passport, you may simply be able to avoid detection and travel to Korea. But that will be more difficult to do if you, for example, stay in Korea for more than a month and attend a school or get a job. The only likely way this will change is through litigation, especially because it would be a political suicide for a Korean legislator to touch this issue. Until the situation is resolved differently, if you are a male between the ages of 18 and 37, born to parents who are/were Korean citizens, the Korean would highly recommend speaking with an attorney in Korea before you make a mid- to long-term stay in Korea.

Got a question or a comment for the Korean? Email away at askakorean@gmail.com.

27 comments:

I had a coworker, an adoptee who returned to Korea and lived here teaching English. He had previously served in the American military as a helicopter pilot and got mustered out after a knee injury. While over here, he met a girl, fell in love and got engaged. He got her enough of a visa to fly to America to meet the folks before the wedding while he finished his contract.

Then she's in the US, and he's told he can't leave Korea until he fulfills another military stint ... dunno how the story ended. Did he have to put on a uniform again? I think so.

Wait wait wait. So now I might be a dual citizen because my father is a Korean citizen and my mother was a Korean citizen? Is there a process for finding out on your own or do you need to go through an attorney?

More specifically (but affirming exactly what TK said in this post), I think what happened is that after the 2005 law, if you were registered on the Family Census Register (or the predecessor of the Family Census Register) then you had to give up South Korean nationality before the 18ish line or else you had to serve. Registration meant dealing with bureaucracy and dealing with paperwork and had to be initiated by your family (normally your parents), so it would be difficult to not know about the dual citizenship in that case.

However, if you were never registered on your family's FCR then the conscription law said you were exempted from military duty (until you became registered) and if you turned 22 without ever being registered, you lost your South Korean nationality at that point. This makes a lot of sense to me, because from what I understood a South Korean "citizen" who was not registered on a family census register did not have to passports, national ID cards, etc. and could not really take advantage of that nationality. Although that person might be considered as a South Korean national on a technicality (in some cases, like applying for an F4 visa this actually matters), in practice that person did not really have the status of citizenship.

This was changed around the time when the 2010 nationality law change went in, so now being in this "unregistered FCR national" status doesn't matter in terms of military conscription exemption.

What irks me about the 2010 law is that, in addition to snaring people like Paul who don't want it, some people who are children of a South Korean national simply can't get dual citizenship (even if that person is wiling to accept military service as a requirement). This is a bit nuts.

thebobster,

That person's situtaiton surprises me. The new dual citizenship laws shouldn't have anything to do with him (unless your coworker is currently under the age of 25, which seems unlikely for a helicopter pilot from the US Air Force (or other military branches for that matter) or unless he went through a process to get dual citizenship restored).

Many adoptees would be exempted from military duty anyways, as they had been adopted from an orphan hojok and thus qualify to be exempted as orphans. This happens for reasons such as the person was found as an abandoned baby. This is not true for every adoptee though - some are adopted from their original hojok that identifies the person's original family.

Most adoptees would be exempted fro military duty because they'd be in the same status as TK - a former South Korean national who obtained a new nationality after birth and automatically lost South Korean citizenship in the process.

I just don't understand how an ethnic Korean born overseas and was never registered in the FCR can still be considered a Korean national. How can a person not exist in a country's census and yet have citizenship??

Look at it this way - if you are born in the US to two US citizen parents, but somehow they "forget" to register you in the US census, should your US citizenship then be taken away? I'd go a far as to say that violates a person's human rights.

Anyways, IIUC (and IANAL) the legal fiction is something like this: even though you aren't in the census and the nation doesn't know about you, as long as the law technically says that you are a national of the country, you still have the rights and privileges and duties associated with your nationality. Once the government knows about you, they can formally register you into the census and restore whatever privileges are owed to you at that point - and as part of the legal fiction backdate your new nationality to the moment you were born.

None of this would be a big deal if you could just choose to drop it afterwards. The problem, of course, is that if you are a male in a certain age range, you can't choose (at least, not without performing certain duties first).

Personally, I'm of the opinion that those who qualify for the second-generation, non-resident citizens exemption [재외 국민2세] should be allowed to give up their Korean nationality immediately after getting that exemption. Or perhaps even be allowed to directly apply to renounce it on the same qualifying basis without going thru the extra step of getting the exemption first.

In fact, I'm not the only one - there's a petition to change the law in exactly this scenario (see yeschange dot org).

Just to shed some light on this issue. There are ways for overseas Korean men to get out of military service. If you can prove that you lived in the United States for more than 10 years, you are permitted postpone military service until you are 35 years old and then once you turn 35, you become exempt. However, that being said, because you aren't technically exempt from military duty until you're 35, that also means you can not give up your Korean citizenship until you are 35.

If you are the child of Korean immigrants to the US - and you were born in the US - how does the Korean gov't know anything about your parents? In other words, if you are named John Kim, was born in the US, and carry a US passport - when you show up at Inchon Int'l - how do Korean immigration authorities know that your parents were once Korean citizens and that you are a dual citizen?

This is really an issue for those who are staying in Korea for long periods of time(over 6 months). The rule is that if you are in Korea for more than 6 months, you can not leave until you fulfill your military duty. The issue only comes up when you are applying for a visa.A lot of overseas Koreans are unknowingly registered into the family registry by their grandparents. And in other cases, if Korean Americans(or other korean diaspora for that matter) want to stay in Korea for the long term, the embassy or consulate will ask them if they are Korean when applying for a visa. Hard to say you're NOT Korean if your name is Kim, Park, Kwak, or Paik. If the embassy finds out that you are an ethnic Korean, then they will ask for the proof of foreign citizenship by your parents. If that doesn't exist, then generally the person is out of luck. He can enter Korea for periods of 90 days or less if he has a US passport without a problem, but working or going to school in Korea without doing military service is not an option

How would that save him from his situation? The issue is that he's a Korean citizen himself. When he applies for a visa of any kind, he will be asked if he is Korean, and the situation of his parents, and once the people at the embassy find out, they will turn him down for his visa because as a citizen, he does not need a visa to enter Korea.

He is permitted to enter Korea. It's just that as soon as he decides to make a long trip to Korea that requires a visa, that long trip only be possible if he applies for a Korean passport. He's not illegal in the US, this law recognizes him as a dual citizen of the USA/ROK. The thing is the law not only recognizes him as a dual citizen, but FORCES him to be a dual citizen.

Paul, you are eligible for an exemption from the Korean military; see the following link:http://icenter.ucsd.edu/ispo/current/forms-guides/korean-military.html

My husband was born and raised outside of South Korea, and though he has been a Korean citizen all of his life, he does not need to serve in the military. He said that he used to have a stamp in his passport to signify his exemption, and now he does not need a stamp because he is in a database. There is probably some paperwork to fill out, and your local Korean embassy can probably help you.

Parents born in korea, moved to US and gain citizenship. They then had my husband in the USA. My husband has considered working in korea, but has heard recently about new citizenship and draft laws. Will these affect him?

Is there anyway to involuntarily lose the Korean Citizenship while you are in the US?I'm applying for a position that requires a security clearance which does not allow dual nationality. Like Paul, I just found out that I had this status while applying for a job.

I find it interesting that in Korea, if you dodge the draft, you'd be heavily ostracized and would have trouble finding a job where in patriotic USA, if you skip out on the draft you get elected to high office.

You're right. He should be allowed back into Korea (though only as a tourist, and only for a period of a few months at a time). He can't permanently move to Korea or even work in Korea for a short time without taking the risk of getting drafted, but if he fills out his paperwork then he should be ok for a short visit.

@MrsKimchi,

Since the parents were US citizens first, and your husband was born afterwards, then your husband should be fine. It's possible that your husband's parents may have forgotten to fill out the appropriate paperwork with their local Korean embassy though, in which case they may incorrectly assume that his parents are still Korean nationals and that therefore he is also a Korean national. Best to double check with the consulate anyways, but the worse that I can see happening is that your husband will have to wait a few months while his parents's paperwork (to get their loss of Korean nationality recognized by the Korean government) is processed.

@KimJoshua,

Women who are US-Korea dual citizens can voluntarily lose up their Korean nationality at any time while in the US. Males can do so before they turn 18, or after they are old enough that they are no longer eligible to be drafted (IIRC this is after age 37, but I'm not 100% sure). For men in between these ages, there is no way.

However, you might be ok as far as the security clearance is concerned. If you didn't choose to get Korean nationality, and you haven't done anything like trying to vote in a Korean national election or get a Korean passport, and you state that if you could, you'd give up your Korean nationality in a heartbeat, then having dual citizenship will probably not disqualify you for a security clearance.

You are mostly right about it being the case that if either one of your parents is a Korean citizen when you are born, then you are too. However, my understanding is that this is a little bit more nuanced than that. There are at least two exceptions to this rule.

If your mother is Korean and your father is not, and you were born before June 14, 1978, then you aren't a Korean citizen. (But a possible exception to this exception is that if your father is unknown or has no formal nationality, then you are one.)

If your mother is Korean and your father is not, and you were born on or after June 14, 1978 but before June 13, 1998, then you aren't a Korean citizen UNLESS you chose to become one by reporting (a formal petition made in writing) to the Korean Minister of Justice by the deadline December 31, 2004. (There is a force majeure exception to the deadline, in which case you have three months from the end of that situation to make the report. Also, the thing about an unknown or stateless father applies here as well.) If you didn't report by the end of the deadline though, then you aren't one.

Hello everyone, first time running in to this site and hoping you guys might be able to help me with my case.

Parents, brother and I were all born in Korea. When I was 2 years old, we migrated overseas because my dad started his own business (Entrepreneur). Knowing how complex military draft issues are, we applied for exemption and was given the status on our Korean passports (brother and I) when we were in middle school/high school.

Since then I've attended college in the U.S (F visa) and have sponsored to work through a H-1B visa... and have been offered green card sponsorship but not yet applied - total time spent in US : 10 years.

My family on the other hand has returned back to Korea just about the same time I started college 10 years ago. Being away from the family and Korea, I'm starting to feel the urge of wanting to live back at home but I am unsure of my situation. I have no idea if I can live and work in Korea freely without draft problems.

Is my only option to be hired in the States and be assigned to South Korea? Currently working in the Supply Chain Management field, and would like to continue down this job path.

My nationality, citizenship, and passport is Korean, however have a permanent resident-ship in a non-US based country. I did read something about deferring draft till 35 if I've lived in the States for 10 years - which I have just completed. Does that apply to my scenario as well?

Sorry for the lengthy post and questions. Will take all the help I can. Thank you!!

To my knowledge, you can only apply for an extension for the military/civil service draft once you turn 18, which only lasts for a few years. After that you have to reapply for another extension once you are 24ish, which extends the draft date until you're 35(or was it 38 now). This only applies to a Korean citizen WITH a foreign permanent residency (i.e. green card).

You cannot stay in Korea for more than 6 months for that entire year, participate in any moneymaking activities (working), or file a permanent residency for Korea without risking the military draft.

Once you become a naturalized citizen of another country, you forfeit your rights and your citizenship of ROK unless you serve the military/civil service draft, then you can become a dual citizen.

Hi, so my parents are Koreans nationals who moved to Switzerland, married there, and gave birth to me. I have a Korean passport but I've never lived there and spent my entire life in Switzerland and other countries. However I don't have Swiss citizenship so I can't give my Korean one up, and I'm not exactly fluent at Korean.

Plus if I were to give up my Korean citizenship for a Swiss one, I would have to be conscripted into the Swiss military.

Is there no getting away from conscription at this point? The thing I'm most concerned about is the language barrier because I can't imagine spending 2 years in the military while being forced to speak a language I'm not familiar with.

I and my wife were Green card holders when my son was born in US. He is now 21 and a citizen.

I haven't cancelled my Korean citizenship and didn't register him in FCR. He will go to Korea with a US passport and a student visa and study less than 6 months (5 and half months)I am worrying he might get drafted to Korean military. Or, if he refuses to serve military he may be put in jail. Does anyone know the answer?

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The Korean is a Korean American living in Washington D.C. / Northern Virginia. He lived in Seoul until he was 16, then moved to Los Angeles area. The Korean refers to himself in the third person because he thinks it sounds cool.